|Cem Kaner, Ph.D., J.D.||c/o Dept of Computer Sciences, Florida Tech|
|Law Office of Cem Kaner||150 West University Blvd.|
|firstname.lastname@example.org||Melbourne, FL 32901-6988|
In an article entitled, "Correcting Some Myths About UCITA" (http://www.2bguide.com/docs/rne.html), Ray Nimmer says that public debate "should be based on reasonably correct facts, rather than distortions." He then cites and seems to refute a series of alleged misrepresentations of UCITA.
One comment in Ray's paper involves nondisclosure. Ray says:
"A fourth misrepresentation is that UCITA allows licensors to prevent licensees from commenting about the products. This allegation makes nice copy and superficial impact, but is simply untrue. You can scroll through the UCITA draft and will not find any such provision. . . .
"The only entity that I know that does try to enforce such a restriction in its mass market contracts is the Consumers' Union"
You Will Not Find Any Such Provision
Read UCITA 102(a)(20):
" 'Contractual use restriction' means an enforceable restriction created by contract which concerns the use or disclosure of, or access to licensed information or informational rights, including a limitation on scope or manner of use."
A nondisclosure clause is a contractual use restriction. Under UCITA, contractual use restrictions are normally enforceable whether they are in mass-market contracts or not.
The Clauses at Issue
Attached is a copy of restrictions imposed on users of VirusScan, a mass-market software product. I obtained these from the VirusScan site,www.mcafee.com, on July 20, 1999.
"The customer shall not disclose the results of any benchmark test to any third party without McAfee's prior written approval."
"The customers will not publish reviews of the product without prior consent from McAfee."
An apparently comparable clause, enforced by Oracle, led to the attached article, "The Test That Wasn't" in the August 1999 issue of PC Magazine, page 29. According to that article,
"We planned to do something that has not been done in recent history: a comparison of database performance on the exact same hardware. Because a database software license prohibits publishing benchmark test results without the vendor's written permission, negotiating for permission is always a challenge. . . ."
"Oracle . . . formally declined to let us publish any benchmark test results."
As a result, PC Magazine did not publish benchmarks.
A free market requires a free flow of competitive information. How else can buyers make informed choices?
This case involved a non-mass-market product. Nondisclosures are enforceable in that market today. But nothing in the statutory language (there are no official comments for us to review) of UCITA tells us that these apparently enforceable restrictions should not be enforced in the mass-market.
A court might refuse to enforce such a restriction in a particular case. However, as a lawyer who advises writers, under UCITA I would be much more cautious in my advice to a journalist who wanted to review McAfee than I would be today. I've discussed this clause with others who counsel journalists. They've told me that they feel the same way. UCITA's wording appears to make a mass-market nondisclosure clause enforceable, whereas we doubt strongly that an American court would enforce the clause in the absence of UCITA.
Ultimately, after several expensive court battles, I think that such clauses will be found to conflict with public policy. Until then, the plain language of UCITA will have a chilling effect on free criticism of mass-market products.